Alabama: A watershed moment for reproductive rights

The overturning of Roe v Wade in 2022 fuelled rising concerns among fertility care providers in the USA, that some states would vie to be as restrictive as possible (see BioNews 1147). The recent Alabama Supreme Court's decision equating fertilised eggs with living children saw these fears realised. The court's decision has far reaching implications, ones that it appears the court failed to take to their logical conclusion.

When performing IVF, there is almost never a one-to-one correlation between embryo and baby. Almost always, multiple eggs must be exposed to sperm in the hopes that they develop into embryos. Not all embryos are viable, many do not implant, and some will miscarry. In some cases, the resulting embryos are screened to make sure that they have the correct complement of chromosomes, or to ascertain that they do not carry life limiting or health affecting conditions. By virtue of this, many embryos will never become children, either because they can't or because they are in excess of what is needed to achieve a healthy pregnancy.

As a direct result of the Alabama Supreme Court's ruling, physicians in the state of Alabama quickly discontinued performing IVF as they worried that the handling of embryos required to achieve a pregnancy would place them in legal jeopardy and potentially make them susceptible to accusations of manslaughter. Transport companies often used by patients needing to transfer eggs, embryos or sperm from state-to-state quickly discontinued their operations, further limiting options for patients. The result was in effect an abrupt and absolute cessation of fertility care at several fertility clinics, leaving patients with no options during a vulnerable, stressful and intensely hopeful time in their lives (see BioNews 1228). The emotional and financial tolls of this hard stop are impossible to quantify but are clearly far reaching.

This ruling provided a lens into what reality might look like if fertility treatments were withheld, and it quickly became evident that this was not a reality that the majority of Americans wished to see come to pass. President Joe Biden chose to address the issue of IVF and reproductive rights clearly in his annual State of the Union address, including inviting affected IVF patients from Alabama along as guests. 

Even the Republican Party, long a torch bearer of anti-choice legislation, realised that the court's decision had gone too far in a direction contrary to the sentiments of their supporters. Abortion has so far been a particularly delicate topic of debate during this election year in the USA. In fact, the NRSC (National Republican Senatorial Committee), whose charter states their mission as electing Republicans to the United States Senate, delivered a strongly worded memo to their members warning them to steer away from discussing this ruling. Instead of discussing restrictions on reproductive liberties, they suggested that Republican elected officials express unwavering support for IVF.

According to a recent nationwide survey by Kellyanne Conway, an American political consultant and pollster who was an advisor to former President Donald Trump, 85 percent of all respondents support not only the availability, but increasing access to fertility related procedures and services. There are few other topics with such broad consensus in the USA. Even among anti-choice advocates, support for access to fertility services is 78 percent. Candidates who prioritise increasing the availability of contraceptives and fertility related treatments enjoyed were supported by 85 percent of survey participants. Republicans have long attempted to equate 'family values' with the restriction of abortion services. In a fascinating twist in the wake of the Alabama ruling, Republicans have been urged to support access to IVF as an expression of these very same family values.

The loud outcry from the citizens of Alabama, including the women and men who were embroiled in the turmoil of suspended fertility treatments, received a rapid response from lawmakers. In under 20 days, a bill protecting IVF providers was passed by the Alabama House and Senate and signed into law by the state's governor (see BioNews 1230). This bill states that 'Relating to in vitro fertilisation; to provide civil and criminal immunity for death or damage to an embryo to any individual or entity when providing or receiving services related to in vitro fertilisation'.

While the bill is a short-term fix and opens the door to the possibility of restoring reproductive care in the state, it falls short on a number of levels. It fails to address the legal status of the embryo, such that additional debate and legislation will need to take place in the weeks and months ahead. It also does not ensure that decisions about their bodies and their embryos remain wholly in the hands of the intended parents, in consultation with their trusted physicians.

While the Alabama bill protecting those providing fertility services from liability is welcome, it does nothing to ensure access to care for the citizens of Alabama suffering from infertility. As of September 2023, 21 states and the District of Columbia have passed fertility insurance coverage laws, of which 15 cover IVF.

This still leaves the vast majority of Americans living in states without coverage for reproductive services. And yet, there is room for hope. The recent introduction of the Access to Family Building Act of 2024 in the United States Senate aims to address this chasm. It seeks to establish a statutory right to access IVF and ensure that it remains legal and available throughout the USA. It furthermore calls for the protection of an individual's rights towards the use or disposition of their reproductive tissues.

The citizens of Alabama have borne the most recent brunt of the effects of the Dobbs decision vis a vis their reproductive rights. This burden has not been in vain. Alabamians should be proud that their grassroots efforts have broadcast to all Americans the risks of attempting to curtail these freedoms. This ruling has unearthed the vast support throughout the country for the protection and expansion of access to reproductive services. Perhaps this moment of history was a painful yet necessary precursor to positive change.

One can only hope that the lessons learned from attempts to interfere in the medical practice of reproductive care will continue to resonate broadly and return decisions regarding family building to their true stakeholders – those seeking to become parents or expand their families.